Product Liability

What Goes Into Proving a Product Liability Case?

When your injuries are caused by a defective or unreasonably dangerous product, any personal injury claim you decide to file will probably be classified as a “product liability” case, but this is something of a catch-all legal term. The lawsuit itself can be based on several different theories of liability (meaning arguments you and your attorney will make in an effort to hold the manufacturer or seller responsible for your injuries).

What Kinds of Harm Can Lead to a Product Liability Case?

Product liability cases (sometimes falling under the umbrella of “mass tort” claims) can arise from a number of different kinds of injury, including:

  • illness linked to a product like Roundup weed killer or JUUL/e-cigarettes
  • harmful side effects (including serious illness) from use of a prescription or over-the-counter medication (like Zantac)
  • injuries and health complications caused by a defective medical device (like an IVC filter), and
  • diagnosis of cancer or other illness resulting from asbestos exposure (or use of a talc product like Johnson’s Baby Powder).

Product Liability Plaintiffs Can Make More Than One Legal Argument

A product liability plaintiff (usually the injured person who is filing the civil lawsuit) can use as many legal theories as might apply to his or her case. In other words, you won’t be forced to guess (right at the outset of your case) which theory is best and then stick with that one course. But it’s important to note that in the realm of personal injury law, the fault concept of “strict liability” was designed to replace the concept of negligence in product liability cases, so a plaintiff won’t usually sue under both a strict liability theory and a negligence theory. You and your lawyer will work together to craft the best strategy for your case, but let’s take a closer look at some of these concepts.

Strict Product Liability

In a strict product liability case, the plaintiff usually must show that:

  • a product was sold in an unreasonably dangerous condition or with an inadequate warning
  • the seller expected and intended that the product would reach the consumer without changes to the product, and
  • the plaintiff (or the plaintiff’s property) was injured by the defective product.


In a product defect case based on negligence, the plaintiff must typically prove that:

  • the defendant owed the plaintiff a duty of reasonable care under the circumstances (i.e. by making or selling a product, the manufacturer or seller had a legal obligation to make sure that product was free from dangerous defects and unreasonable or hidden risks)
  • the defendant’s actions (putting a dangerous product into the marketplace) breached the duty owed to the plaintiff, and
  • the plaintiff actually suffered some kind of injury (“damages” in legalese) as a result of the defendant’s actions.

Breach of Warranty

In a breach of warranty case, the plaintiff must show that:

  • an express or implied warranty applied to the product, and
  • the product did not meet the terms of the warranty.


In a defective product case that is based on a “fraud” legal theory, the plaintiff must show that:

  • the defendant made certain representations about the product
  • those representations were not true
  • the defendant knew the representations were not true (or were unlikely to be true)
  • the defendant made the representations so that the plaintiff would buy the product
  • the plaintiff was justified in relying on the defendant’s representations, and
  • the plaintiff was damaged in some way as a result of the defendant’s false representations.

Strict Liability Is Typically the Main Theory

For two main reasons, strict product liability will likely be the main focus of a plaintiff’s dangerous or defective product case, and will represent the biggest threat to a defendant manufacturer or seller.

First, as we see in the sections above, in order to make a successful case based on a negligence or fraud theory, the plaintiff needs to prove a number of additional elements. The plaintiff’s “burden of proof” is easier to meet in a strict liability case.

Second, strict liability allows a plaintiff to recover the full range of damages available in a typical personal injury case (including compensation for (“pain and suffering”). In contrast, compensation in a breach of warranty case can often be limited to concrete economic damages (e.g. damage to property, medical bills, etc.), and usually excludes “pain and suffering” damages.

However, if the facts of the case actually fit a fraud theory, a defendant may be ordered to pay punitive damages based on its intentional deception. In those somewhat rarer product liability cases that do involve fraud, the punitive damages award can end up being quite high, since this kind of award is typically set relative to a defendant’s assets. For example, in June 2020, Johnson & Johnson was ordered to pay $1.62 billion in punitive damages as part of a lawsuit over asbestos in talc products.

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